Irvin v. Winn

OPINION & ORDER DENYING THE PETITION FOR A WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
& DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON
APPEAL

LINDA
V. PARKER U.S. DISTRICT JUDGE

I.
Introduction

This is
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Royale Lampton Irvin
(“Petitioner”) is challenging his convictions of
second-degree murder in violation of Michigan Compiled Laws
Section 750.317 and possession of a firearm during the
commission of a felony, second offense, in violation of
Michigan Compiled Laws Section 750.227b, following a jury
trial in the Wayne County Circuit Court. The trial court
sentenced Petitioner to consecutive terms of 35 to 70 years
imprisonment and five years imprisonment for those
convictions in 2011. In his petition, he raises claims
concerning the admission of text messages at trial, an upward
sentencing departure, and the late appointment of counsel at
his preliminary examination. For the reasons set forth below,
the Court is denying the petition for a writ of habeas
corpus. The Court also is denying a certificate of
appealability and leave to proceed in forma pauperis on
appeal.

II.
Facts and Procedural History

Petitioner's
convictions arise from the shooting death of Derry/Derek
Kirkland[1] at his home in Detroit, Michigan, during
the early morning hours on January 29, 2011. The Michigan
Court of Appeals described the relevant facts as follows:

The evidence at trial showed that defendant went to the home
of Karen Thomas (“Tee Tee”) at 3:00 a.m. and
knocked on the door. When Derek Kirkland, her boyfriend,
answered the door, defendant asked whether Tee Tee was home
and then shot Kirkland five times through the door. Several
witnesses testified that, after the shooting, defendant
claimed that he did not “do drivebys, ” he did
“knock knocks.” Two other individuals were
charged. One of them drove with defendant to Thomas' home
and the other obtained the address of the home and
information that Thomas, the intended victim, was home at
that time. Both of these individuals were allowed to plead to
lesser charges in exchange for their testimony. Defendant
testified that he went to the home to confront “Tee
Tee, ” who he believed had participated in a rape of
his sister two years earlier. Defendant claimed that he acted
in self-defense and that, when he knocked on the door,
Kirkland opened the door with a gun in his hands.

Following
his convictions and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals asserting that the
trial court erred in admitting text messages sent by Karen
Thomas, that the trial court erred in departing above the
state sentencing guidelines in imposing his sentence, that he
was denied due process because counsel was appointed moments
before the start of his preliminary examination, and that
trial counsel was ineffective for failing to object to
prosecutorial misconduct and for failing to properly
represent him at sentencing. The Michigan Court of Appeals
denied relief on those claims and affirmed Petitioner's
convictions and sentences. Id. at *1-3. Petitioner
then filed an application for leave to appeal with the
Michigan Supreme Court raising the text message, upward
sentencing departure, and preliminary examination appointment
of counsel claims. The court denied leave to appeal in a
standard order. People v. Irvin, 846 N.W.2d 397
(Mich. 2014).

Petitioner
dated his initial federal habeas petition on September 25,
2014. In that petition, he raised claims concerning the
admission of text messages at trial, an upward sentencing
departure, the late appointment of counsel at his preliminary
examination, and the constructive denial/ineffective
assistance of trial counsel. The Court dismissed that
petition without prejudice to allow Petitioner to return to
the state courts and exhaust his constructive
denial/ineffective assistance of trial counsel claim.

Petitioner
subsequently moved to reopen this case to proceed on an
amended petition containing only his three properly-exhausted
claims. The Court granted Petitioner's motion and
reopened the case on December 2, 2014. Respondent has since
filed an answer to the petition, as amended, contending that
it should be denied because all three claims lack merit and
the final claim is also procedurally defaulted. Petitioner
filed a reply to the answer.

III.
Standard of Review

The
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) sets forth the standard of review
federal courts must use when considering habeas petitions
brought by prisoners challenging their state court
convictions. AEDPA provides in relevant part:

An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
...

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